Terrance L. Mitchem v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 14, 2017
• Docket: 71A05-1702-CR-415
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 14 2017, 8:02 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Terrance L. Mitchem Curtis T. Hill, Jr. Michigan City, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Terrance L. Mitchem, September 14, 2017 Appellant-Defendant, Court of Appeals Case No. 71A05-1702-CR-415 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jane Woodward Appellee-Plaintiff. Miller, Judge Trial Court Cause No. 71D08-9506-CF-260

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017 Page 1 of 11 STATEMENT OF THE CASE [1] Appellant-Defendant, Terrance Mitchem (Mitchem), appeals the trial court’s

denial of his motion to correct erroneous sentence.

[2] We affirm.

ISSUE [3] Mitchem raises five issues on appeal, which we consolidate and restate as the

following single issue: Whether the trial court properly denied his motion to

correct erroneous sentence.

FACTS AND PROCEDURAL HISTORY [4] For the recitation of the facts, we rely on our supreme court’s opinion in

Mitchem’s direct appeal:

On June 12, 1995, [Mitchem] and two codefendants, Michael Greer and Dorian Lee, armed with weapons, entered a home occupied by four adults. [Mitchem] raped the two female occupants. [Mitchem] then told the four occupants to line up against the wall with their backs towards [him], Greer[,] and Lee. [Mitchem] then changed his mind and told the occupants to turn around to face [him] and to kneel. Greer, Lee, and [Mitchem] opened fire on all four occupants. One victim died and the other three survived.

Mitchem v. State, 685 N.E.2d 671, 673 (Ind. 1997). On June 14, 1995, Mitchem

was charged with murder; burglary, a Class B felony; three Counts of attempted

murder, Class A felonies; two counts of rape, Class A felonies; and one Count

Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017 Page 2 of 11 of criminal deviate conduct, a Class A felony. On December 11, 1995, a jury

acquitted Mitchem of the burglary offense, but convicted him of all other

charges. On January 11, 1996, the trial court sentenced Mitchem to fifty-five

years for murder; and concurrent thirty-five years on each of the three Counts of

attempted murder, two Counts of rape, and one Count of criminal deviate

conduct. Mitchem’s fifty-five-year murder sentence was to be served

consecutively with his other sentences, for an aggregate sentence of ninety

years. On September 5, 1997, our supreme court affirmed Mitchem’s

conviction and sentence on direct appeal. Id. at 680.

[5] On January 8, 2001, Mitchem filed a petition for post-conviction relief. Due to

changes of counsel, recusal of the initial post-conviction judge, and various

continuances, the post-conviction court did not commence an evidentiary

hearing on Mitchem’s petition until December 4, 2009. During that time, the

post-conviction court observed that the chronological case summary had

included a notation that an amendment to the petition was anticipated, but had

not been filed. Therefore, the post-conviction court directed Mitchem’s post-

conviction counsel to clarify the issues as presented in Mitchem’s original pro se

petition for post-conviction relief. Accordingly, Mitchem’s counsel restated the

claims as follows: (1) whether trial counsel was ineffective for abandoning an

issue regarding suppression of a firearm; (2) whether an adequate record was

made to preserve an error relating to the requirement of specific intent to kill (as

related to attempted murder offenses); (3) alleged fundamental error in jury

instructions; (4) whether appellate counsel was ineffective for failing to raise an

Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017 Page 3 of 11 argument regarding the jury instructions; and (5) whether appellate counsel was

ineffective for omitting a sentencing argument as to a mitigating circumstance.

On August 17, 2011, the post-conviction court issued its findings of fact,

conclusions of law, and order denying Mitchem’s post-conviction relief.

Mitchem appealed, claiming that he was denied procedural due process because

the post-conviction court addressed, in its findings of fact, conclusions of law,

and order, issues presented by his post-conviction counsel at the post-conviction

hearing, as opposed to issues he had delineated in his original pro-se petition for

post-conviction relief. This court denied Mitchem’s appeal. See Mitchem, No.

719A03-1110-PC-497, slip op. at 2. On December 16, 2016, Mitchem filed a pro

se motion to correct erroneous sentence. On January 24, 2017, the State filed its

response. On February 9, 2017, the trial court denied Mitchem’s motion.

[6] Mitchem now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Standard of Review

[7] Mitchem appeals the trial court’s denial of his motion to correct erroneous

sentence. We review a decision on a motion to correct erroneous sentence for

an abuse of discretion. Fry v. State, 939 N.E.2d 687, 689 (Ind. Ct. App. 2010).

An abuse of discretion occurs when the trial court’s decision is against the logic

and effect of the facts and circumstances before it. Id. Indiana Code section 35-

38-1-15 provides:

Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017 Page 4 of 11 If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corrected after written notice is given to the convicted person. The convicted person and his counsel must be present when the corrected sentence is ordered. A motion to correct sentence must be in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence.

The purpose of this statute “is to provide prompt, direct access to an

uncomplicated legal process for correcting the occasional erroneous or illegal

sentence.” Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004) (quoting Gaddie v.

State, 566 N.E.2d 535, 537 (Ind. 1991)). As such, a motion to correct sentence

may only be used to correct sentencing errors that are clear from the face of the

judgment imposing the sentence in light of the statutory authority. Id. at 787.

Claims that require consideration of proceedings before, during, or after trial

may not be presented by way of a motion to correct sentence. Id.

[8] In his pro se appellate brief, Mitchem makes five arguments, two of which the

State argues are not appropriate for a motion to correct erroneous sentence.

We agree. For example, Mitchem challenges his murder sentence, claiming

that it violates Blakely v. Washington, 542 U.S. 296, 301 (2004), which holds that

“the facts used to support an enhanced sentence, other than the fact of a prior

conviction, must be found by a jury or admitted by a defendant.” Fulkrod v.

State, 855 N.E.2d 1064, 1067 (Ind. Ct. App. 2006) (citing Blakely, 542 U.S. at

301). But “a Blakely claim is not the type of claim which may be brought

through a motion to correct erroneous sentence” because it would require us to

“look beyond the face of the judgment to see if imposition of an enhanced

Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017 Page 5 of 11 sentence was based upon facts determined through constitutionally permissible

channels.” Fulkrod, 855 N.E.2d at 1067.

[9] In addition, Mitchem argues that the trial court abused its statutory sentencing

authority by ordering him to serve his fifty-five-year murder sentence

consecutive to his concurrent thirty-five-year sentences for his three Class A

felony attempted murder convictions. Although phrased differently, this is an

issue that was determined by our supreme court on direct appeal. See. Mitchem,

685 N.E.2d at 680 (holding that to “impose consecutive sentences, there must

be at least one aggravator” and in Mitchem’s case there were several

aggravators present, i.e. “(1) the number of times the victims were shot; (2) the

victims were asked to helplessly kneel before [Mitchem] and face [Mitchem]

while he deliberately executed the victims; and (3) the female victims were

repeatedly raped and forced to perform deviate sexual acts”)

[10] Looking at the remainder of Mitchem’s three arguments, we find them

appropriate for a motion to correct erroneous sentence. First, Mitchem claims

the trial court applied the wrong sentencing statute with regard to his murder

conviction. Secondly, Mitchem asserts that his thirty-five-year sentences for the

attempted murder convictions were not within the statutory sentencing range.

Lastly, Mitchem claims that the Abstract of Judgement shows an omission with

regards to his additional credit time of 213 days earned prior his sentencing.

We will address each issue in turn.

Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017 Page 6 of 11 II. Applicable Sentencing Statute

[11] Mitchem contends that the trial court applied the wrong version of the murder

sentencing statute (I.C. § 35-50-2-3(a) (1995), P.L. 148-1995 (effective July

1995)), when it imposed the fifty-five-year sentence for the murder conviction.

To address this claim, we must discuss in some detail a confusing period in the

history of Indiana’s murder sentencing statute, Indiana Code section 35-50-2-3.

[12] As explained by our supreme court in Smith v. State, 675 N.E.2d 693, 695 (Ind.

1996), the Indiana General Assembly amended the murder sentencing statute

twice in 1994. The first amendment raised the presumptive sentence for murder

from forty to fifty years, but reduced the possible enhancement from twenty to

ten years. Id. See P.L. 164-1994 1 (approved March 11, 1994 and effective July

1, 1994). In other words, the presumptive sentence was raised, but the

maximum sentence remained unchanged. See id. at 697. The second

amendment “allowed for the exclusion of mentally retarded individuals from

the death or life imprisonment without parole sentencing option of the

sentencing statute, but did not incorporate the raised presumptive sentence of

1 The amendment read:

SECTION 2. IC 35–50–2–3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1994]: Sec. 3 (a) A person who commits murder shall be imprisoned for a fixed term of forty (40) fifty (50) years, with not more than twenty (20) ten (10) years added for aggravating circumstances or not more than ten (10) years subtracted for mitigating circumstances; in addition, the person may be fined not more than ten thousand dollars ($10,000). (b) Notwithstanding subsection (a), a person who was at least sixteen (16) years of age at the time the murder was committed may be sentenced to: (1) death; or (2) life imprisonment without parole; under section 9 of this chapter.

Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017 Page 7 of 11 the first amendment. Id. at 695. See P.L. 158-1994 (approved March 15, 1994

and effective July 1, 1994). 2 This situation was corrected on May 5, 1995, when

the General Assembly incorporated the higher presumptive sentence from the

first amendment with the other provisions of the second amendment 3. Id. But

for those who committed murder after the amendments became effective but

before the situation was corrected, “there were two different [murder sentencing

statutes] in effect, each with a different presumptive sentence.” Id. The

2 SECTION 5. IC 35–50–2–3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1994]: Sec. 3 (a) A person who commits murder shall be imprisoned for a fixed term of forty (40) years, with not more than twenty (20) years added for aggravating circumstances or not more than ten (10) years subtracted for mitigating circumstances; in addition, the person may be fined not more than ten thousand dollars ($10,000). (b) Notwithstanding subsection (a), a person who was at least sixteen (16) years of age at the time the murder was committed may be sentenced to: (1) death; or (2) life imprisonment without parole; under section 9 of this chapter unless a court determines under IC 35-36-9 that the person is a mentally retarded individual. 3 As noted, the General Assembly finally corrected the problem on May 5, 1995 when it amended the Indiana Code to make technical corrections. The amendment read as follows: SECTION 128. IC 35–50–2–3, AS AMENDED BY P.L. 158–1994, SECTION 5 AND P.L. 164–1994, SECTION 2, IS CORRECTED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 3.(a) A person who commits murder shall be imprisoned for a fixed term of forty (40) fifty (50) years, with not more than twenty (20) ten (10) years added for aggravating circumstances or not more than ten (10) years subtracted for mitigating circumstances; in addition, the person may be fined not more than ten thousand dollars ($10,000). (b) Notwithstanding subsection (a), a person who was at least sixteen (16) years of age at the time the murder was committed may be sentenced to: (1) death; or (2) life imprisonment without parole; under section 9 of this chapter unless a court determines under IC 35-36-9 that the person is a mentally retarded individual. P.L. 2–1995 (approved May 5, 1995).

Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017 Page 8 of 11 question before the court in Smith was which statute to apply to those who

committed murder when both statutes were in effect.

[13] The defendant in Smith pleaded guilty to murder, and the parties agreed that the

defendant would receive a sentence of no more than fifty years executed. Id.

At the plea hearing, the parties appeared to agree that the fifty-year presumptive

sentencing statute applied. Id. at 696. At sentencing, however, the defendant

argued that the forty-year sentencing statute was appropriate. Id. On appeal,

our supreme court agreed with the defendant, holding that when sentencing for

murders committed between July 1, 1994 and May 5, 1995, trial courts must

employ the statute which prescribes a forty-year presumptive sentence and

allows an enhancement of up to twenty years.

[14] The long-standing rule that the sentencing statute in effect at the time a crime is

committed governs the sentence for that crime. Gutermuth v. State, 868 N.E.2d

427, 431 n. 4 (Ind. 2007). Thus, on June 12, 1995, the day Mitchem committed

the murder, the presumptive sentence for murder was fifty years with a possible

enhancement of ten years. See P.L. 164-1994. Mitchem’s argument that P.L.

158-1994, providing for a forty-year presumptive sentence was the applicable

statute, lacks merit.

III. Statutory Range

[15] Next, Mitchem claims that the concurrent thirty-five-year sentences for the

Class A attempted murder felonies, were not within the statutory sentencing

range. Specifically, Mitchem argues that he should have been sentenced to a

Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017 Page 9 of 11 fixed term of twenty-five years on each of his Class A felonies instead of thirty-

five years. At the time of the instant offenses, the presumptive sentence for a

Class A felony was twenty-five years, with up to twenty years added for

aggravating circumstances. See I.C.§ 35-50-2-4 (1994). Thus, Mitchem faced a

possible sentence of forty-five years on a single Count. Again, we find no merit

in Mitchem’s claim, and we conclude that the trial court did not abuse its

discretion by denying his motion to correct erroneous sentence.

IV. Credit Time

[16] In his last argument, Mitchem claims that his sentence is erroneous because he

is entitled to receive additional credit time of 213 days spent in pre-trial

confinement. See I.C. § 35-38-3-2 (requiring the judgment of conviction to

include “the amount of credit, including credit time earned, for time spent in

confinement before sentencing”). In support of his claim, Mitchem points us to

the Abstract of Judgment, indicating the alleged omission.

[17] In Robinson v. State, 805 N.E.2d 783, 784 (Ind. 2004), the defendant filed a

motion to correct erroneous sentence asserting that the trial court’s sentence

improperly failed to award credit for time served and good time credit. The

supreme court explained that “[i]t is the court’s judgment of conviction and not

the abstract of judgment that is the official trial court record and which

thereafter is the controlling document. Therefore, a motion to correct

erroneous sentence may not be used to seek corrections of claimed errors or

omissions in an abstract of judgment.” Id. at 794. See also Jackson v State, 806

N.E.2d 773, 774 (Ind. 2004) (“A motion to correct sentence may not be used to

Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017 Page 10 of 11 challenge entries or omissions in an abstract of judgment”); Laycock v. State, 805

N.E.2d 796, 798 (Ind. 2004) (“Entries in the abstract of judgment may not be

challenged by a motion to correct sentence.”).

[18] Mitchem cites to the Abstract of Judgement showing that he only received 213

days of earned credit time. Mitchem claims that there was an omission in the

abstract of judgment since it failed to include his additional 213 days of credit

time earned during pre-sentence confinement. We recognize that Mitchem’s

challenge is to the abstract of judgment and not the sentencing judgment. As

the court held in Robinson, “a motion to correct sentence may not be used to

seek corrections of claimed errors or omissions in an abstract of judgment.”

Robinson, 805 N.E.2d at 794. Accordingly, the trial court did not err in denying

his motion.

CONCLUSION [19] Based on the foregoing, we conclude that the trial court did not abuse its

discretion in denying Mitchem’s motion to correct erroneous sentence.

[20] Affirmed.

[21] Robb, J. and Pyle, J. concur

Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017 Page 11 of 11